Sunday, 16 October 2016

Establishing the European Border and Coast Guard: all-new or Frontex reloaded?

Herbert Rosenfeldt, Research Assistant and PhD candidate, University of Passau

Introduction

Attending a
birthday party at a remote checkpoint at the Bulgarian external border with
Turkey does not sound like fun. Unless you are the adventurous type, you would
probably hesitate to join in if it was not for someone special. Indeed, last
Thursday high ranking EU and Member States’ officials visited Bulgaria’s
Kapitan Andreevo Border Checkpoint to inaugurate the new European Border and
Coast Guard Agency a.k.a. Frontex.

This is so far the
most visible sign of the coming into force of the European
Border and Coast Guard Regulation on the same day. Not lacking pathos or
high expectations (Donald
Tusk: “To save Schengen, we must regain control of our external borders. A
new European Border and Coast Guard Agency is being created”), the new EBCG
seeks to reinforce external border control against the background of last year’s
migratory pressure put on the southern and south-eastern EU Member States with
external Schengen borders. According to EU officials’ analyses, national border
guards had been unable or unwilling to “protect” the Schengen area effectively
by stopping the influx of irregular migrants. Frontex, on the other hand, was
held to have been too ill-equipped in terms of powers, personnel and equipment
to render sufficient support or remedy the situation. There is a simple, perhaps
simplistic, rationale behind the new EBCG – one that gathered broad consensus
among Member States and EU institutions resulting in a fast track legislative
procedure of less than a year. The stronger EU external border control, the
less permeable borders are for migrants; the smaller the number of migrants
arriving, the smaller the problems within the Schengen area. Those problems comprise
allocating asylum seekers and processing their claims, providing food and
shelter, or safeguarding internal security and freedom of movement. The focus
on external borders has been accurately criticised, inter alia, here
and here.

Is the new EBCG
truly a “milestone in the history of European border management”, as suggested
by birthday guests but contested
by others? Is the new agency something special at all? Hence is it worth
joining the congratulants (if belatedly)? What birthday wishes should be made?
Surely only time and further in-depth analysis can tell. Steve’s earlier post here
gave the broader picture of last year’s legislative proposals on border control
and migration. For now, and after two preliminary thoughts, I would like firstly
to make some observations on the changing concept of EU external border
management. Secondly, I highlight some institutional changes. Thirdly and
fourthly, I will focus on two much debated novelties in external border
control: emergency interventions and the complaints mechanism in the context of
Fundamental Rights accountability.

Towards Securitisation

The drafters of the
new regulation were discernibly concerned by the loss of control at Europe’s
southern and south-eastern borders. Adapting to the ongoing political
discourse, the wording of the Regulation (Article 1, see also Articles 4
and 15) gives top priority to regaining and keeping control of the migration
situation and to efficient border management. Migration challenges and
potential future threats are mentioned in succession, followed by serious
cross-border crimes. The aim to be achieved is a high level of internal
security within the Union while safeguarding the free movement of persons
within it. In a subtle way, this almost equates migratory pressure through
irregular migration with potential threats to internal security and
cross-border crime. In further construing Article 1 of the Regulation, it
appears that affording international protection and protecting human rights are
clearly no objectives of European border management. Rather, they are perceived
as restrictions to securing EU borders.

Another feature of
this security-orientated approach is new migration management support teams to
be deployed in hotspot areas (Article 18). Support in processing asylum claims
and returning third country nationals does not help to protect the Schengen
area from migrants at first sight. However, if it is done rapidly in hotspot
areas, migrants are effectively not entering the Schengen area, hence
apparently more security. Along the same line of reasoning, increased
capacities to support return operations (Article 18, 28 et seq.) reflect
political demand for enforcing third country nationals’ returns.

Legal instruments rearranged

The law of EU
external border control is no role model for legal clarity and certainty. Legal
acts such as the Frontex
Regulation have frequently been amended, and they are intertwined with
various other EU legal acts. The new Regulation at least partly smoothes this
scattered landscape by merging the Frontex Regulation and the Regulation on Rapid
Border Intervention Teams into one. Furthermore, the Schengen Borders Code has
been amended (see below). Although based on the same EU competence (Article 77
(2) (d) TFEU), applied at the external Schengen borders and closely related to
the work of Frontex and the national external border guards, Regulations on EUROSUR
and surveillance
of the external sea borders remained untouched. Hence the legislator missed the
opportunity to create a single comprehensible piece of legislation apart from
the SBC, the latter covering other subject matters such as entry conditions of
third country nationals and internal border controls anyway.

New concept of external border controls

Before, States with
external Schengen borders were exclusively tasked with policing those borders.
Under the Frontex Regulation, border control fell into the sole competence of
the Member States. Frontex’s main task then was to render border control more
effective by coordinating Member States’ joint activities and providing surveillance
data, technical support and expertise. The common conceptual framework
informing border controls, called “integrated
management system for external borders” (now Article 77 (1) (c) TFEU), only
featured in strategy papers and policy recommendations of the Commission and
the Council such as the non-binding Updated
Schengen Catalogue 2009.

The new EBCG
consists of the EBCG Agency and the national border and coast guards. Although
Member States retain primary responsibility for border management, there is a
clear shift towards responsibility shared with the Agency (Article 5 of the
Regulation). On scrutiny, the new system arranges the Agency and the Member
States in a hierarchical order. It is the Agency’s task to establish a
technical and operational strategy for integrated border management. All national
strategies will have to comply with it. Although co-operation outside the
Agency’s remit remains possible, this is limited to action compatible with the
Agency’s activities. Therefore, there is not just well-known supremacy of EU
law at work in this area of shared competences, but supremacy of the Agency’s
strategies, broadly phrased tasks and objectives. On paper (see the eighth and
eleventh recitals), the political development of integrated border management
is left to the EU organs, whereas technical and operational aspects will be
clarified by the Agency. The dividing line is of course far from clear. As a
result, the Agency will almost inevitably assume a more proactive role.

In my view, shared
responsibility serves as a chiffre to justify taking away Member States’
discretionary powers in border control. In practice, the Agency gains greater
impact and tools of supervision and coercion, as will be seen below. Still, the
new Regulation has to be given credit for legally defining components of
European integrated border management for the first time ever.

Institutional changes

In short, Frontex
becomes … erm … Frontex! Despite last week’s “all-new” rhetoric, little will
change in the constitutional setting of the Agency. As a decentralised (i.e.
regulatory) agency it remains an independent EU body with legal personality.
Its headquarters will remain in Warsaw. The Agency’s official name, which
nobody used before, changes to a shorter name, which probably nobody will use going
forwards – and that is alright because it reflects that the Agency is not
founded anew but continues all its activities, albeit with expanded tasks and
more resources.

To this end, the
Agency’s staff grows from 309 in 2015 to 1,000 in 2020. The number of Member States’
border guards deployed in EBCG teams remain subject to annual bilateral
negotiations. At the same time, a rapid reaction pool of 1,500 European border
guards as a standing corps operational within 5 days has been inscribed in the
Regulation. The Agency continues to maintain a technical equipment pool
composed of equipment owned by either the Agency itself or by the Member
States. With an increase in budget to more than twice the amount of 2015 (€143.3
to €322 million in 2020), the Agency might actually start acquiring equipment
on its own in the future.

Of the Agency’s
tasks (see the long list in Article 8 (1) of the Regulation), most have been
assigned to Frontex before. Characteristic of the new supervisory role are
vulnerability assessments carried out by the Agency to evaluate the capability
and readiness of Member States’ border guard to act in emergencies. The
assessment might lead to binding recommendations by the Executive Director. To
disregard them can eventually result in a situation requiring urgent action as
described further below. Moreover, Frontex shall deploy liaison officers in the
Member States monitoring and reporting on national external border management.
It is true that command and control in EBCG operations remains with the host
Member State. However, from now on, the host Member State has not only to
consider the Frontex coordinating officer’s views, but also to follow them as
far as possible.

Another noteworthy
development concerns the Agency’s support rendered to Member States coping with
migratory pressure at so-called hotspots. The existing
provisions on hotspots in EU Decisions on relocation of asylum-seekers have
been codified in Article 18 of the Regulation, which now assigns a supportive
role to Frontex in migration management. This includes screening, registering
and providing information to third country nationals on their right to apply
for international protection. It further includes facilitating their return
right from the hotspot area.

One might argue
that the European Asylum Support Office is better placed to do all that.
However, in my opinion the crucial question is to what extent any EU agency
involved influences or determines the Member States’ decisions on entry, to
afford international protection or to return migrants. Such executive powers
have not been granted to EU institutions and therefore – at least by law – they
remain firmly within the Member States’ jurisdiction. The provisions provide
for tailor-made support teams coordinated by all relevant Union agencies under
the auspices of the Commission. Thus, the new Regulation acknowledges the role
of agencies and the significance of hotspots without clarifying much. It
remains to be seen how the agencies will delineate their respective contributions.
If you have always been looking for a legal definition of hotspot area, at
least you will find one in the new Regulation (Article 2 (10)).

Situations requiring urgent action – right to intervene?

How to deal with
emergency situations at the external borders of Member States unwilling to act
– that was the only matter of serious contention during the legislative
process. In normal operation and as before, a Member State at first formally
requests the Agency’s support and the launch of EBCG operations (Articles 14
(1), 15 (1) and (2), 18 (1) et al). At the second stage, the Member State and
the Executive Director agree on the operational plan (Article 16 (2)). Lastly,
the host Member State itself retains command for the whole operation (Article
21 (1)). The Commission
proposal for the Regulation challenged those safeguards for the Member
States’ sovereign right to border protection. The Commission envisaged itself initiating
emergency interventions conducted by the Agency and supported by the Member
State concerned. Boldly, this was labelled the Agency’s “right
to intervene”. Understandably, it stirred criticism among Member States.

The subsequent
trilogue put things in order again: Now it is an implementing act of the
Council (proposed by the Commission) which substitutes the Member State’s
request at the first stage if (a) the State did not follow the recommendations
resulting from vulnerability assessments or (b) it faces specific and
disproportionate challenges at his external borders without requesting or
supporting joint EBCG operations (Article 19 (1)). The implementing act of the
Council authorises the Agency to take various measures. It is binding upon the
Member State. In turn, it becomes evident that the Member State’s formal request
in accordance with the normal procedure might no longer be as voluntary as the
wording suggests. Because if joint European action is deemed necessary, there
is always the possibility that an emergency intervention will eventually be
initiated.

Yet, at the second
stage, the Member State still has to agree on the operational plan submitted by
the Agency (Article 19 (5)). This might be interpreted as linking emergency
interventions to the Member State’s consent after all. However, in the light of
the purpose of emergency interventions, I submit that the duty to fully comply
with the Council decision and to this end cooperate with the Agency entails the
duty to consent to the operational plan. Otherwise, it would always be possible
for reluctant Member States to impede the whole procedure depriving it of much
of its force.

For the
implementation of the measures prescribed by the Council, the Member State
concerned still acts as host state. As a consequence, that State retains
command and control of the operations and can be held liable as in normal
operations. It can be questioned whether an unwilling State should be forced to
lead a joint operation in times of emergency. At the same time, however, it is
most likely that different entities will be engaged in the process. The
decision not to conduct operations or to request assistance is often taken at a
high political level, whereas operational command is exercised within the
national border guard authorities.

Lastly, Article 19
(10) most remarkably links the Member State’s non-compliance with the Council
decision and failure to cooperate with the Agency to prospective national
measures taken within the Schengen area. According to newly amended Article 29 of
the Schengen Borders Code, the Council upon proposal by the Commission may
recommend to Member States the reintroduction of controls at their internal
borders if the Member State’s behaviour (a) puts the functioning of the area
without internal borders at risk, and (b) leads to a serious threat to public policy
or internal security. This mechanism can be triggered only 30 days after the
Council takes its (urgent?!) decision. As a result, Member States that do not –
for whatever reason – cooperate at their external borders in emergencies can de
facto be temporarily excluded from the area of free movement. The much-stressed
concept of solidarity (Article 80 TFEU) hence turns into its evil twin: showing
solidarity means complying with the EBCG activities à la EU. It becomes the
prerogative of the EU institutions to determine who is in solidarity, and the
lack thereof entails serious consequences.

In sum, the new
Regulation establishes a legal obligation to cooperate in situations requiring
urgent action of the Member State concerned. If the State does not comply,
there is no way to enforce this duty or to deploy EBCG teams on his territory
against his will. The only sanction seems to urge other Member States to close
their internal borders instead.

Human Rights complaints mechanism and accountability

When Frontex was
established in 2004, the Fundamental Rights (FR) implications of its work had
been completely overlooked. The founding Regulation did not contain any
specific references to FR. Over the following years through a piecemeal
approach, largely affirmative and declaratory FR obligations found their way
into the Regulation. More importantly, Frontex drew up an FR strategy (followed
by an action plan) in 2011. At the same time, a consultative forum and an FR
officer were established to give advice on FR matters and strengthen FR
compliance. With the new Regulation, there are minor improvements on the human
rights record. Article 1 now mentions FR, they form part of compulsory
reporting and evaluation schemes as set out in the operational plan, and there
is a single comprehensive provision spelling out FR obligations (Article 34).

The Regulation
finally introduces a FR complaints mechanism (Article 72, discussed here)
as demanded by European Parliament, EU Ombudsman and Council of Europe since
2013. Any person directly affected by actions of staff during EBCG operations
can file a complaint about FR violations with the FR officer. The FR officer is
responsible for setting up the complaints mechanism, administering complaints
and deciding on their admissibility. He or she then directs them to either the
Executive Director or the competent national authority for them to decide on
the merits and an appropriate follow-up. The FR officer then again monitors
this decision as well as the follow-up.

In my view, the
effectiveness of the mechanism depends on two preconditions. Firstly, the FR
officer’s resources should increase significantly to stem the Herculean tasks
ahead of him. Secondly, his institutional independency within the Agency has to
be reinforced, bearing in mind that he is a member of staff and dependent on
good working relationships with other members of staff. Several open questions
remain. For example, the provision leaves open how the FR officer will enforce
the appropriate follow-up by the Agency or the Member States. It does not make
clear that the complaints mechanism does not affect other remedies, nor does it
foresee an appeals procedure with an independent body. The FR officer and
ultimately the Executive Director or the Member States authorities will have to
answer difficult legal questions on who is “directly affected” by an action and
who is responsible for it (see below). For the development of the law, it would
have been better if a court or tribunal had had subsequent jurisdiction. So
far, actions for annulment or damages (Articles 263, 268 TFEU) have not
generated any EU case law regarding Frontex, and except for its judgment in Hirsi
Jamaa, the ECtHR was not able to fill the gap neither.

“The extended tasks
and competence of the Agency”, the 14th recital of the Regulation reads,
“should be balanced with strengthened fundamental rights safeguards and
increased accountability”. But does the new Agency live up to the claim? Apart
from the complaints mechanism, the FR framework largely stays the same, and so does
the general liability framework: The home Member State takes disciplinary
action whereas the domestic laws of the host Member State determine criminal
liability. It is also the host Member State incurring civil liability for the
EBCG teams. The Agency itself incurs non-contractual liability according to the
general principles of EU law (Article 340 (2) TFEU). There are no provisions
determining which acts or effects of external border control are attributed to
the Agency or to the Member States involved (a problem
of multi-actor scenarios, where the 2011 ILC Articles on the Responsibility
of International Organizations might be of help). Following recent revelations
on the frequent use of firearms in joint operations, MEPs wrote
to Executive Director Fabrice Leggeri asking for more information and
general guidance on responsibilities in certain operational scenarios. The
ignorance displayed by Frontex’s designated watchdogs (see Article 7 of the
Regulation) is further evidence for the need of more transparency and legal
clarity in this regard.

Outlook

On the 6th of
October 2016 the landscape of EU external border control did not change
dramatically, but it did change. To repeat: No new agency has been founded, no
EBCG under EU command and control was established, no right to intervene at
Member States’ external borders against their will has been introduced. In fact
and most notably, the Member States’ external border guard is placed under
increased scrutiny of the EBCG Agency. Failure to comply with integrated border
management standards could eventually lead to reintroducing internal border
controls to the detriment of the disobedient Member State. At the same time,
the Agency’s enhanced tasks and powers will go hand in hand with more
responsibility and accountability, but the latter has yet to be improved.
Although the complaints mechanism is a step in the right direction, its design
could have been more effective. This holds true especially for the follow-up
mechanism. In practice, much will depend on the Fundamental Rights officer’s
assertiveness on the one hand, and the Executive Director’s responsiveness on
the other hand.

After all, the
distinguished guests to the celebrations at Kapitan Andreevo Border Checkpoint
last week did not witness birth or rebirth, but rather Frontex’s coming of age
both in terms of leverage and responsibilities. Frontex, I wish you well
indeed.